Major Accidents to the Environment. A Practical Guide to the Seveso II Directive and COMAH Regulations

298 Pages·2008·2.48 MB·English

by  Ivan Vince (Eds.)

Foreword
Over the past two decades, fatalities from natural disasters in Europe have
exceeded those caused by technological accidents by 20 to 1. Nevertheless
the statistics for technological accidents make sobering reading. The Seveso II
Directive Major Accident Reporting System (MARS) holds data on approximately
600 major accidents that have been notifi ed since 1984, with approximately 30
notifi able accidents being reported on an annual basis since 2000. According to
the European Environment Agency’s Europe’s Environment: The Third Assessment
(2003), between 1971 and 1992 there was, on average, one technological accident
every year in Europe that resulted in 25 or more fatalities. This trend resumed
in 1998, principally due to mining fatalities in the Ukraine. The fi nancial toll
is considerable – a report commissioned by the HSE in 1998 estimated that
the indicated costs of the top twenty UK accidents post-Flixborough totalled
approximately £430 million.
Although injuries or loss of life are understandably the immediate concern of
major accidents, harm to the environment is increasingly taking centre stage
following high profi le accidents such as those at Sandoz, Switzerland in 1986 and
Buncefi eld, UK in 2005. Neither involved fatalities but still raised serious concerns
over their potential environmental legacy. For instance, in the Sandoz warehouse
fi re some 500 miles of the river Rhine were impacted by water used to fi ght the
fi re. In addition to direct losses of $12 million, liability claims were estimated at
approximately $70 million, largely covered by the company’s liability insurance.
Europe’s Environment: The Second Assessment (1998) reports that between 1984
and 1996, 21 out of a total of 300 major accidents were notifi ed to MARS as
having caused ecological harm, with or without concomitant impacts on humans
and/or material assets. If this proportion were replicated annually across Europe,
an average of between two and three notifi ed major accidents per year would
be expected to have caused signifi cant environmental damage. When other
accidents falling outside the MARS reporting criteria are added in, it becomes
clear that environmental damage caused by accidental releases is far from being a
secondary issue.
Adverse impacts on the environment from accidents, whether ‘major’ or not,
pose daunting interpretative challenges to the stakeholders involved, in that each
party must acquire a mastery of three separate disciplines. First, the accident
itself, with the circumstances leading up to the event, needs to be fully dissected
and understood from a structural and process engineering standpoint, so that
appropriate preventative safeguards can be put in place. Second, the damage to the
environment needs to be assessed, in terms of the physicochemical and toxicological
properties of the chemicals involved, the nature of the ecosystems affected, and the
extent of damage and timescales for recovery. Third, and perhaps most diffi cult
of all, a monetary value has to be assigned to the quantum of damage and its
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viii Foreword
remediation, together with restitution of amenities and services. Suffi cient fi nancial
provision to cover these eventualities needs to be in place before an incident
occurs. The recent introduction of the Environmental Liability Directive (ELD)
adds a further dimension of complexity, with considerations of compensatory and
complementary remediation in addition to primary remediation.
Nor are these disciplines of equal maturity. Compared to human health and
technological risk assessment, environmental and ecological risk assessment is a
relatively new scientifi c endeavour. Concepts of ‘harm’ and ‘signifi cance’ have
still to be fully worked through in an ecological context and placed on a fi rm
legal footing. New fi nancial products may have to be designed by the insurance
industry to meet the particular demands of the ELD.
The interests of all of the actors – operators, health and safety practitioners,
environmental risk assessors, regulators and insurers – are intertwined when
environmental damage occurs, and each must appreciate the technical, legal and
fi nancial intricacies, albeit from different perspectives. On this basis, it might
seem obvious that the fi eld needs an integrated treatment of environmental
harm resulting from major accidents, contained in a single volume. However, it
appears that no such text has been conceived to date.
The breadth of knowledge required to do the subject full justice is unlikely to
reside in one individual. Enter Ivan Vince and his collaborators, experts in their
chosen fi elds and therefore able to tackle each facet of a particularly thorny subject
clearly and authoritatively. Of particular value are the case studies underpinning
and illuminating the arguments, and the comprehensive appendices containing
supporting information, in large part from the grey literature that the average
reader would be hard-pressed to identify and source without specialist knowledge
of the fi eld.
This text is a timely contribution to the fi elds of plant safety and environmental
protection. This is a subject that will only grow in importance as we learn to
appreciate the true worth of a clean environment, and yet avail ourselves of and
benefi t from technological advances. Major Accidents to the Environment will serve
as a reference text, delineating the contours of a far more informed debate on
these issues.
Dr Gev Eduljee
Technical Director, SITA UK
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Preface
To my knowledge, this is the fi rst book devoted to the topic of Major Accidents
to the Environment (MATTEs). The intention has been to provide a guide to
issues peculiar to MATTEs – in the areas of civil, criminal and insurance liability
as well as regulatory (COMAH) compliance.
The uncontrolled release of dioxins from a factory at Seveso in 1976
fortunately resulted in no immediate deaths, but wrought enduring devastation
on the local environment. Incongruously, then, the ‘Seveso’ Directive (82/501/
EC, implemented in the UK as the CIMAH Regulations 1984) focused narrowly
on public safety, with somewhat vague environmental exhortations tacked on.
An amendment to the Directive followed the 1986 Sandoz warehouse fi re and
consequent severe pollution of the Rhine, but it was only in 1996 that ‘Seveso II’
(96/82/EC, cf UK COMAH Regulations 1999) made explicit most of the current
requirements for environmental protection from major accidents. (It, too, has
been amended following an environmental disaster: the failure of a tailings dam
at Baia Mare, causing a massive fi sh kill.) Refl ecting the shift in emphasis, the UK
Health and Safety Executive now formally shares, together with the Environment
Agency, the role of regulating Seveso II/COMAH.
The fi rst chapter of this book (supported by most of the appendices) addresses
potential problems in complying with the environmental aspects of COMAH.
The operator of a hazardous installation governed by Seveso II/COMAH is legally
obliged to consider potential MATTEs in the same way as major accidents affecting
the safety of the public, in a degree of detail proportionate to the risk. This is
very much more easily said than done. The environmental aspects of COMAH
present clear challenges, in theory as well as in practice. At the most basic level,
even to decide whether an installation is capable of causing a MATTE is not
always straightforward. Conceptual problems in risk assessment are compounded
by potential confl icts in applying control measures: what is good for safety (and/
or property) is not always good for the environment. Notoriously, contaminated
fi refi ghting water has caused untold environmental damage, as in the above-
mentioned Sandoz incident.
Both of the Directive-shaking incidents mentioned above affected major water-
courses in several countries. So it is, perhaps, surprising that there is still no
international protocol in force to settle issues of civil liability for environmental
damage from transboundary pollution. The reasons for this are explored in the
section on international law, which is the fi nal subject treated in Chapter 2,
following a comprehensive account, supported by case citations, of UK civil and
criminal law applicable to MATTEs. It will be seen that legal issues surrounding
MATTEs are generally more complex than for minor incidents or gradual
pollution.
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x Preface
The opposite is sometimes the case when it comes to insurance, since MATTEs
tend to belong to a class of event that is ‘written back’ into policies which exclude
cover for gradual pollution. Nevertheless, the subject is fraught with quirks and
caprices, which Chapter 3 dissects systematically for the lay reader – but, again,
with comprehensive citation of cases. Much hangs on defi nitions and the wording
of policies: for example, in a chain of events leading to a MATTE, is there cover
for the one qualifi ed as ‘the incident’? Is there cover for urgent remediation, begun
before a claim is made against the insured?
I believe that the reader will fi nd, as I have found, the discussion of several
incidents by more than one author to be illuminating. In any event, the appendices
contain a further considerable number of case studies, in varying depth, assembled
from disparate sources. The appendices also feature selected readings around
specialised issues in Chapter 1, as well general background material.
Acknowledgements
As nagger, I am grateful to my co-authors for their good humoured patience; as
naggee (but it was the gentlest cajoling), to Jonathan Simpson, Jackie Holding and
Lyndsey Dixon at Elsevier; the last very kindly took over one of my contractual
duties. Dr Ludovic Lemaignen of ASK Consultants and Dr Cris Whetton of ility
Engineering gave valuable help with information searches. Dr Gev Eduljee of
SITA UK and my daughter Gaia Vince of Nature read drafts and gave crucial
advice, all of which I have followed. My wife Gina mopped my brow and kept
the show on the road.
Ivan Vince
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Author biographies
Valerie Fogleman is a Consultant at Stevens & Bolton and Professor of Law at
Cardiff and Ghent Universities. A US attorney as well as a solicitor, she is listed
in all the major UK legal directories. Her books include Environmental Liabilities
and Insurance in England and the United States (Witherbys, 2005).
Daniel Lawrence is Chair of the UK Environmental Law Association and
of Counsel in the Environment, Planning and Regulatory practice group of
Freshfi elds Bruckhaus Deringer. He has signifi cant experience of advising the water
and sewerage, chemicals, power, electricity, telecommunications, biotechnology
and nuclear sectors. His dispute resolution experience includes environment-related
defence work, and civil and administrative litigation.
Tony Moore is Associate Director of the Resilience and Security Group within
Cranfi eld University’s Department of Security Management and Technology,
where he specialises in the management of crises and disasters. He is the
co-editor of Tolley’s Handbook of Disaster and Emergency Management: Principles
and Practice (3rd edn, Butterworth-Heinemann, 2006).
Dr. Niall Ramsden is Director of Resource Protection International, which
has been responsible for developing much of the current hydrocarbon and
petrochemical storage industry guidance on fi re protection and scenario-based
emergency planning. He sits on several international committees on fi re fi ghting
standards for the oil industry. He was an on-scene advisor at the Buncefi eld
Terminal fi re.
Bob Sargent, the immediate past-president of the Chartered Institution of
Water and Environmental Management, is UK Head of Hydrology at Hyder
Consulting. His interests include hydrology, sustainable water resources
management and hydro-ecology.
Dr Ivan Vince is Director of ASK Consultants and co-founder AGEL-CBI, one
of the fi rst industrial risk consultancies in Eastern Europe. His research interests
include environmental risk assessment and smoke dispersion from fi res. He has
taught post-graduate courses in risk assessment techniques in the UK and abroad
and has investigated several environmental accidents.
Caryl Walter, who has a BSc in Environmental Policy with Economics from the
LSE, is a solicitor at Freshfi elds Bruckhaus Deringer in the Environment, Planning
and Regulatory group.
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1
Technical aspects
Ivan Vince, Bob Sargent,
Niall Ramsden and Tony Moore
INTRODUCTION
As discussed below, Major Accident To The Environment (MATTE) is a defi ned,
if somewhat diffuse, concept under the COMAH (Control of Major Accident
Hazards regulations, SI 1999 No.743) regime. As regards the latter, there is a
large volume of documentation, much of it freely available on the Health and
Safety Executive (HSE) web site, providing very clear and detailed guidance on
all aspects relevant to human health and safety. For several reasons, correspond-
ing publications on the environmental aspects of the COMAH are both fewer
and less detailed.
Therefore, the purpose of this chapter is not to give an overview (for which
see CA, 1999), but to focus in some depth on certain problem areas peculiar to
MATTEs, in risk assessment, accident prevention and mitigation, and emer-
gency response. Key sections of COMAH relevant to MATTEs are reproduced in
Appendix 1.
While this book concentrates on the impact of chemical accidents on the nat-
ural environment (i.e. ecosystems), it should be recognised that environmental
impact can also affect people, e.g. through the contamination of farm land and
water supplies, overloading of sewage treatment works, damage to amenities, etc.
For a detailed discussion of confl icts between safety and environmental consider-
ations (not all major hazard related), see Crawley et al., 2000 and Beale, 2000.
The variety of circumstances surrounding MATTEs (chemicals, processes,
immediate causes, outcomes) can best be appreciated by perusing collections of
incident reports. Over one hundred records in the EU/OECD Major Accident
Reporting System (MARS) database refer to major accidents that have caused
environmental harm (not necessarily MATTEs). The records, in the form of short
reports, are freely available (MAHB, 2007); full reports have been prepared by the
national competent authorities for some incidents. A thoughtful selection of case
studies appears in Christou, 2000 (see Appendix 2). A twice monthly roundup
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4 Major Accidents to the Environment
of industrial accidents, available at www.saunalahti.fi /ility/HInt1.htm, has a
section devoted to the environment. Appendix 3 lists brief details of environmental
accidents in the last twenty years extracted from the MHIDAS database, main-
tained by AEA Technology on behalf of HSE (AEA, 2007); owing to space
constraints, the extract excludes hydrocarbon spills. There are many other sources
of incident data.
RISK ASSESSMENT
Loss prevention begins with risk assessment. Operators of hazardous installations
need to have some understanding of the hazards and associated risks created by
their activities to decide rationally what, if any, additional control measures to
implement, to prioritise any remedial actions and, specifi cally under COMAH,
to demonstrate that they are adequately controlling the risks.
To judge whether a given degree of control is suffi cient, it is necessary to con-
sider both the severity and the likelihood/frequency of events (‘scenarios’) that
might result from the hazards being realised. The fi nal step in a COMAH risk
assessment is to subject the so-called ‘residual risks’ (i.e. the risks remaining after
taking into account the effects of all prevention), protection and mitigation meas-
ures in place or planned, to a triage: risks are compared against two threshold
criteria and assigned into three categories, often shown diagrammatically as zones.
A risk in the highest category, labelled ‘intolerable’, cannot be justifi ed whatever
the economic benefi ts of the activity giving rise to it and, in the last resort, the
activity can be summarily prohibited by the authorities until the risk is lowered.
Risks in the lowest, ‘broadly acceptable’, category, may need no further attention,
beyond monitoring (unless several such risks converge/overlap so as to exceed the
‘broadly acceptable’ criterion, see e.g. HSE, 2003). Intermediate risks must be
reduced to ALARP (As Low As Reasonably Practicable), based on some form of
cost-benefi t comparison. Approaching the upper extreme of ALARP, the operator
would be expected to act to reduce risks unless the costs of doing so were shown
to be wholly disproportionate to the reduction achievable; conversely, risks mar-
ginally above the lower extreme would be acceptable unless a large improvement
were feasible for a relatively small investment.
What is an appropriate depth of analysis will depend on the size of the risk, the
complexity of the operation and, especially in the case of environmental risks, the
availability of data on the vulnerability of ‘receptors’. In practice, however, even
on complex, ‘top-tier’ COMAH sites where certain risks may demand the most
detailed analysis, it is always possible to simplify the analysis overall, beginning
with a preliminary screening-out of risks of palpably low consequence and/or low
frequency/probability of occurrence.
Screening can take various forms. In a sense, the COMAH designation is itself
a form of pre-screening, based as it is on the presence of threshold quantities of
dangerous substances. Scenario selection is also a form of screening, since only
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Technical aspects 5
physically credible scenarios should be considered; in particular, there must be
an unbroken pathway from source to environmental receptor, there must be the
potential for suffi cient harmful material to reach the receptor to cause a major
accident to the environment (MATTE), etc. The reverse approach has also proved
useful, whereby crude modelling is used to delineate a set of events of minimum
severity that might give rise to a MATTE, allowing the assessor to ignore (for pur-
poses of COMAH compliance) events falling below the minimum set. Similarly,
scenarios can be screened out on the basis of likelihood/frequency; the thresh-
old for catastrophic events generally being taken as 10(cid:1)6 per year [NB the value
applies to the MATTE itself, not to the release that might cause it if all protection
and mitigation measures fail; thus, depending on the circumstances, it may be
justifi able to screen out catastrophic releases of harmful substances at considerably
higher frequencies than 10(cid:1)6 per year].
The safety report required for a ‘top-tier’ COMAH installation must include
a risk assessment focused on major accidents, as specifi ed in Schedule 4 of
COMAH (see Appendix 1):
Part 1 (purpose of safety reports)
The purposes referred to in regulation 7 [Safety report] are as follows-
…. 2. demonstrating that major accident hazards have been
identifi ed ….
Part 2 (minimum information to be included in safety report)
…. 4. Identifi cation and accidental risks analysis….
(a) detailed description of the possible major accident scenarios and their
probability or the conditions under which they occur including a sum-
mary of the events which may play a role in triggering each of these scen-
arios, the causes being internal or external to the installation;
(b) assessment of the extent and severity of the consequences of identifi ed
major accidents;
However, even ‘lower-tier’ sites are required to develop a Safety Management
System (SMS), which addresses, among other issues,
identifi cation and evaluation of major hazards – adoption and implementa-
tion of procedures for systematically identifying major hazards arising from
normal and abnormal operation and the assessment of their likelihood and
severity (Schedule 2, para 4b).
Thus, a role for each of the elements of a risk assessment is specifi ed even in the
case of lower-tier sites. What distinguishes top-tier risk assessments is the emphasis
on rigorous demonstration that the assessment is complete and in adequate
depth.
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6 Major Accidents to the Environment
Elements of a risk assessment
The practice of risk assessment is conveniently divided into tasks, commonly
four, as follows:
● Hazard identifi cation (What can go wrong?)
● Frequency/probability assessment (How often will it happen/how likely is it
to happen?)
● Consequence analysis (What damage will it cause?)
● Comparison with risk criteria (How worried should we be?).
This section will skim lightly over the fi rst two tasks, in the application of
which there is very little to distinguish environmental from safety risk assess-
ment, which is well-documented. Interesting diffi culties arise with consequence
analysis (in safety assessments, often the most straightforward of the four) and,
especially, with risk criteria.
Environmental risk assessment is a relatively young subject and research has
been under-resourced in comparison with safety risk assessment, with some
promising projects discontinued, presumably due to funding diffi culties.
Research results are published in journals such as Journal of Hazardous Materials
and Journal of Loss Prevention in the Process Industries; in conference proceedings,
e.g. the IChemE Hazards series, and in scattered reports often commissioned by
EU organs and competent authorities of member states.
For the purposes of COMAH, the environment includes features such as
architectural and archaeological heritage, groundwater, farmland and sewage
works. However, these features do not present unusual problems in consequence
analysis. This section will therefore focus on ecosystems.
Hazard identifi cation
The strategies and techniques of hazard identifi cation in safety studies are just as
useful in identifying major accident hazards to the environment, as long as the
environmental dimension is consciously included in the scope. Thus, for example,
HAZOP studies do not require any parameters, guidewords or deviations specifi c
to potential environmental harm. However, the team must beware of dismiss-
ing potential releases with no human health or safety consequences too quickly
(and particularly should not skim over the less glamorous nodes, such as drains
and utilities). On the other hand, fi res can have a major indirect environmen-
tal impact through loss of containment of fi refi ghting water; we return to this in
detail below. Explosions can rupture tanks or pipework carrying non-COMAH
substances – such as milk or fruit juice – which can nevertheless devastate an
aqueous ecosystem, and the release would qualify as a MATTE under COMAH.
Frequency/probability
Beyond the initial screening, and particularly in the case of top-tier sites where the
initial estimates of severity and frequency call for a quantifi ed risk assessment, the
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Technical aspects 7
assessor should take into account any fl uctuations in the vulnerability of envir-
onmental targets. For example, a toxic release into an estuary may have a very
serious impact if it happens at a time of year when migrating birds are present,
but little or no signifi cant impact at other times; a species may be more exposed
or more susceptible to a given toxic substance in one stage of its life cycle than in
another; a release into a river will be more rapidly and effectively diluted when
the river fl ow rate is high than when it is low.
Consequence analysis
MATTEs are defi ned by their consequences. More precisely, whether an accident
is deemed to amount to a MATTE depends on a combination of the ecological
or amenity value of the affected receptor(s) and the extent, severity and duration
of damage caused to it by the accident.
A major accident is defi ned in COMAH regulation 2(1) to mean:
an occurrence (including in particular, a major emission, fi re or explosion)
resulting from uncontrolled developments in the course of the operation of any
establishment and leading to serious danger to human health or the environ-
ment, immediate or delayed, inside or outside the establishment, and involving
one or more dangerous substances.
Interpretation with respect to danger to human health is utterly straightfor-
ward. Not so for the environment, where a need for offi cial guidance became
apparent even under the old CIMAH regime, with its weaker environmental cre-
dentials (DoE, 1991). Current UK guidance on what constitutes a MATTE for
the purposes of the COMAH regulations is presented for a variety of environ-
mental receptors in no less than twelve tables (DETR, 1999a) reproduced here
in Appendix 4. Alternatively, COMAH Schedule 7 Part 1(1) lists the following
thresholds for environmental accidents notifi able to the European Commission:
c) immediate damage to the environment:
(i) permanent or long-term damage to terrestrial habitats:
0.5 ha or more of a habitat of environmental or conservation
importance protected by legislation,
10 or more hectares of more widespread habitat, including
agricultural land;
(ii) signifi cant or long-term damage to freshwater and marine habitats:
10 km or more of river or canal,
1 ha or more of a lake or pond,
2 ha or more of delta,
2 ha or more of a coastline or open sea;
(iii) signifi cant damage to an aquifer or underground water:
1 ha or more;
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